City of Calgary v Canadian Union of Public Employees, Local 709, 2021 CanLii 134634 (ABGAA) (J. Casey) (Dec 29, 2021) is a new Alberta Labour Arbitration decision where just cause for termination of employment was upheld respecting a Calgary Waste & Recycling employee who had set aside some refundable bottles and then ignored his supervisor’s direction to properly dispose of them.
This case is a fun one because a lot of the analysis was around the credibility of the terminated employee and his explanations for his actions. His explanations were not considered credible by Arbitrator J. Casey, which led to the finding that the employer had just cause to terminate his employment.
Facts
These are the pertinent facts in this case:
- The City of Calgary has a bylaw prohibiting “scavenging” from recycling containers. This bylaw applies to workers at the City as well
- The grievor (terminated employee) was a foreman working for Calgary Waste & Recycling. He worked partly in the office and partly in the field
- A cardboard box was spotted in the back seat of his city-owned truck, containing refundable bottles
- When the grievor’s supervisor was alerted of the bottles, he asked the grievor to get rid of them right away. He also noticed the grievor was not wearing his steel-toed boots (which he was required to do, even in the office), and asked him to put them on
- The grievor did not put on his steel-toed boots at the time he was asked, but put them on later when he went to deal with the bottles
- When the grievor went to deal with the bottles, he took them out of the cardboard box and put them in a plastic black garbage bag and placed them in the truck box
- The grievor finished out his shift and was suspended pending misconduct investigation the following day
- During the investigation, when asked why the bottles were in his truck at all, he said he had made a trip to pick up bottles at a residence that had been missed during the pickup that day, and put the bottles in the cardboard box with the intention of giving them to the social club to fund a year end party
- When asked about transferring the bottles to the black garbage bag, he said he thought he had complied with the supervisor’s direction to get rid of them, because he took the bottles out of the cab
- The grievor admitted that he had not put on the steel-toed boots when asked and that this had happened several times in the past. He explained that he was wearing street shoes because it was near the end of the day and he was in the office, not the field
- The grievor’s disciplinary history included a 2 day suspension and a 4 day suspension in the last few years. These appeared to be unrelated to his final misconduct
- The grievor was a 21 year employee with the City of Calgary
- The employer terminated the grievor’s employment and alleged just cause on the basis of scavenging, safety infraction, and insubordination.
Analysis / Conclusion
The union argued that the grievor’s actions in taking the bottles was not “scavenging”, because he did not intend to use them for personal gain.
The Arbitrator found that the grievor’s decision to take the bottles and use them for the social club was “scavenging”. He chose to read that term more broadly to mean removing waste from someone else’s bin for a purpose other than disposal by the city in the ordinary course.
The Arbitrator went on to consider whether the grievor was insubordinate when he took the bottles from the cardboard box and put them in a black garbage bag in the back of the truck. The grievor had explained that he thought he was complying with the supervisor’s order to “get rid of” the bottles. The Arbitrator rejected this explanation as being implausible, as follows:
[76] In the context of the work environment in the Waste & Recycling Services department and taking into account the prohibition against scavenging and the Grievor’s senior role as a Foreman, I find the Grievor’s explanation to be implausible. The concern was not simply that the refundable containers were in the back seat of the truck. The concern was that the Grievor had refundable contains in his possession in his truck. The concern was that the refundable containers had not been properly disposed when he had returned to the office. […] This all naturally led to very serious concerns about whether he had been scavenging refundable contains. […]
[77] In this context did the Grievor think that Brent Baksza’s concerns would be addressed by the Grievor taking the refundable containers out of the box, putting them in a black plastic bag, and placing the bag in his truck box between a storage box and back window? That is implausible.
The Arbitrator weighed all of the circumstances in considering whether just cause termination was the appropriate penalty in this case, or whether some lesser penalty ought to have been imposed. The Arbitrator found that the employee being caught without steel-toed boots in the office was relatively minor, because he could easily put them on to do a field job, but the fact that he disobeyed the directive to put them on was serious. The Arbitrator found that “scavenging” in the context of this particular workplace was at the serious end of misconduct, as was the grievor’s insubordination in failing to properly get rid of the bottles after he had been asked.
The Arbitrator ultimately found that the employer had just cause to dismiss the employment of the grievor.
My Take
This case may look cut and dried to some observers, but I am not surprised this was grieved all the way to an arbitration, because of the following:
- The grievor was a 21 year employee. Long service is a factor making it much more difficult to establish just cause for termination in the unionized context
- There was some question as to whether what the grievor did was actually “scavenging”
- If the grievor’s explanation about why he put the bottles in the black garbage bag had been believed by the Arbitrator – even if the Arbitrator chalked it up to a stupid mistake or poor communication skills, I doubt there would have been a finding of just cause in this case.
A published copy of Calgary v CUPE, Local 709, 2021 CanLii 134634 (ABGAA) (J. Casey) can be found at the following link: https://www.canlii.org/en/ab/abgaa/doc/2021/2021canlii134634/2021canlii134634.html?searchUrlHash=AAAAAQAMImp1c3QgY2F1c2UiAAAAAAE&resultIndex=
Bow River Law’s lawyers have substantial knowledge, skills and experience in Alberta labour law, human rights (discrimination) and employment law. Let us help you.
